P L D 1958 (W (PLP)

The other objection which is based on the Evacuee Laws portends to be troublesome to S. M. Yaqub. Some of the important questions involved in it have been decided by the Custodian on references made to him by the Court. The following two questions were referred by Agha, J. on 9th October "Whether defendant No. 2 R. B. Shivratan G. Mohatta has any interest in the property and whether the property is evacuee property or not". The reply to this reference is dated 21‑3‑1951. The findings re as follows :‑ "My finding on the first part of the issue whether Shivrattan Mohatta has any interest in the property is that he has ceased to have any interest in the property since he surrendered the lease of the property in favour of the owner the S. R. Marker Trust on 6th August 1948 which has been confirmed under section 16 of Ordinance XV of 1949 by the Deputy Custodian by order dated the 26th December 1950. As to the second point in the reference whether the property is evacuee property or not, I presume that the Hon'ble Chief Court want it to be ascertained whether any evacuee has any right or interest in the property which is admittedly owned by the non‑evacuee Trust known as the S. R. Marker Trust, Sant Singh & Sons evacuees were tenants of the property and their rights in the property as tenants from month to month are evacuee property. The property in question is thus to be treated as evacuee property to the extent of the evacuee right in it." The sale by Sant Singh in favour of Muhammadi Furniture Manufacturing Co. had not been confirmed up to the date of the above reply. It was confirmed1later on 4‑6‑1951 by Exh.

24. Two more questions were referred by Vellani; J. on 11‑1‑1952. They were as follows :‑ (1) Whether the lessee dated 17‑8‑49 by the Trust in favour of S. M. Yaqub is evacuee property. (2) What right or interest S. M. Yaqub has in it ? The reply is dated 13‑1‑1956. It is as follows :‑ "(1) The lease dated 17‑8‑1948 by the Marker Trust in favour of S. M. Yaqub is not evacuee property. (2) The right or interest of S. M. Yaqub in the property in dispute is that of a lessee for a term of thirty years from 17th August 1948 and the said right is not subject to any evacuee right." These findings mean that the lease rights surrendered by Mohatta in August 1948, did not revert to the Trust until the confirmation of the transaction in December 1950. They were vested in the Custodian during this interval. On the other hand the lease rights of Sant Singh transferred to Muhammadi Furniture Manufacturing Co. in November, 1947 vested in the Custodian from the date of the transfer until the confirmation of the sale in June 1951. Yet the Trust purported to transfer to S. M. Yaqub in August 1948 the right to enjoy the property as a lessee for 30 years. The question therefore is as to what is the effect of delayed reversion of lease rights to the Trust on the lease granted by it to S. M. Yaqub ? Lease rights are immovable property and are to be governed by section 43 of the Transfer of Property Act, 1882. Section 18 of the Specific Relief Act is not applicable because it applies to contracts to sell or let and not to actual transfers. In this case lease rights were purported to have been actually transferred for 30 years. Section 43 of the Transfer of Property Act, 1882, runs as follows :‑ "Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate orb any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option." There was no fraud but there was an implied representation in the lease deed, Exh. 21, that the ‑ Trust was authorised to create the purported tenancy. From this a question arises whether in terms of section 43 the Trust erroneously represented to S. M. Yaqub that it had an authority which it did not possess ? The answer is that a stand taken by the transferor with full knowledge of basic (sic) to the transferee is not a representation made erroneously to the transferee. The words "where a person fraudulently or erroneously represents" connote that the transferee is taken in by the representation made by the transferor. If the transferee is aware of the real facts and concurs in the stand a taken by the transferor then there is no erroneous representation between the parties and the transferee is not entitled to take advantage of such representation. In this connection, the third objection, noted above, regarding the dates of the surrender of lease by Mohatta and of the lease deed by the Trust in favour of S. M. Yaqub is relevant. The lease deed in favour of S. M. Yaqub (Exh. 21) is dated the 5th of August 1948 and was registered on the 17th of August 1948. The surrender of lease Exh. 15 (and Exh. 7) is dated the 9th of August 1948 and was registered on the same date. These two transactions were thus made simultaneously. The lease deed, according to the dates of these two'documents, was written on an earlier date than the surrender of lease. According to the counsel of Muhammadi Furniture Manufacturing Co. the lease deed has no effect because it purports to take effect from an earlier date than the date of the surrender of lease. In other words a comparison of the dates shows that the lease rights were granted by the Trust before they actually reverted to it, but this is a minor objection as compared with the objection that the lease rights had vested in the Custodian at the time of the grant of the lease to S. M. Yaqub. The learned counsel who addressed arguments on behalf. of S. M. Yaqub and the Trust has tried to meet the objection as far as it is based on the dates of the two documents by pointing out that the two documents became effective from the dates of their registration and as the surrender of lease was registered earlier than the lease deed, the lease deed is valid. The explanation of Mr. Marker given by him as a witness, in substance, is that the lease deed was prepared on the 5th of August 1948 but it was not fully executed at least till the 16th of August 1948 when one of the Trustees executed it and therefore the lease deed should be taken to be of a later date than the surrender of lease. This explanation is different from the argument of the learned counsel. None of them are however fully satisfactory because on registration a document operates from the time from which it would have commenced to operate if no registration was required and not from the date of registration. According to para. (1) of the lease deed it was to take effect from the 1st of August 1948. On the Ist of August 1948, the surrender of lease was not effective. The question therefore again is whether section 43 of the Transfer of Property Act, 1882 is helpful to S. M. Yaqub and whether the lease could take effect retrospectively on its registration from the date on which it purports to have been written or from the date on which it was actually executed or from the date from which it was intended to take effect. For an answer I have to go back to the discussion of section 43 of Transfer of Property Act, 1882 with this additional inference from the circumstances that the parties to the lease deed and the surrender of the lease were collaborating with one another for the execution of two inter‑dependent documents with full knowledge of real facts and therefore no representation was made erroneously regarding the effect of the dates of the two documents. Similarly no representation was erroneously made regarding the effect of the Evacuee Law because the sale by Sant Singh and the surrender of lease by Mohatta were submitted to the Custodian for confirmation and the law required it. It is obvious that Mohatta surrendered his lease rights because he wanted to migrate from Pakistan. If S. M. Yaqub did not know that Mohatta was intending to migrate then the Trustees did not know this either. In terms of S. 43 of the Transfer of Property Act, 1882 it is necessary that the transferee should exercise his option if there was a fraud or erroneous representation. It is a pre‑requisite of the passing of property to the transferee because the words of C the section are "at the option of the transferee, operate on any interest". The transferee could not exercise the option contem plated by this section as he was never prepared to admit any defect in the title of the transferor. In Suit No. 94 of 1950 Muhammadi Furniture Manufacturing Co. specifically pleaded as follows :‑ "

12. That in any case the defendant No. 2 (Mohatta) having become an evacuee, the tenancy right held by the defendant No. 2 by agreement dated 21‑5‑45, became evacuee rights and has vested in the Custodian of Evacuee Property.

14. That on 9‑8‑48, the defendant No. 2 purported to release and extinguish the tenancy right which existed by virtue of lease dated 21‑5‑48, but which aforesaid deed of lease is not legal and binding and is void under the Evacuee Property Ordinance No. XV of 1949". To this S. M. Yaqub replied :‑ "

6. Para. 12 is denied inasmuch as the property in suit does not and cannot vest in the Custodian of Evacuee Property. "8 Contents of para. 14 are misleading. It is denied that the surrender of the lease by defendant No. 2 is void under the Evacuee Property Ordinance No. XV of 1949. This said surrender of lease was bona fide and legal." Option having not been exercised by S. M. Yaqub, lease rights did not pass on to him if there was any erroneous representation by the Trust. 5 As against this Muhammadi Furniture Manufacturing Co. became the transferee of the tenancy rights of Sant Singh on 7‑11‑1947 by virtue of Exh. 33, the sale deed by Sant Singh, read with Exh. 24 the order of confirmation. I have stated above that the learned counsel of the defendants has admitted that Muhammadi Furniture Manufacturing Co. became a tenant of the Trust in the place of Mohatta on the confirmation by the Custodian of the surrender of lease by Mohatta. To my mind he was right in conceding this much. Some of the grounds for conceding this contention are that Muhammadi Furniture Manu facturing Co. stood in the shoes of Sant Singh who was originally a tenant of the Trust, and paid rent to Mohatta as a transferee of the Trust under section 109 of the Transfer of Property Act, 1882 so long as he was the transferee. When he surrendered his rights he disappeared from the scene and the old and direct relationship of landlord and tenant between the successor‑in- interest of Sant Singh and the Trust re‑appeared. Sant Singh as well as Muhammadi Furniture Manufacturing Co. paid rent to Mohatta as the transferee of the Trust but there is nothing to show that they elected, for purposes of section 109 of Transfer of Property Act, 1882 to make him "subject to all the liabilities" of the Trust as the lessor. On the contrary their relationship with the Trust had never been completely severed and they paid rent off and on to the Trust. The counsel who argued the cases on behalf of the Trust and S. M. Yaqub has laid a great emphasis on the contention that Sant Singh was a monthly tenant. This is correct and the result is that Muhammadi Furniture Manufacturing Co. is also a monthly tenant of the Trust. The rate of rent, as proved by Exh. 20, is Rs. 240 per month. From the above it follows that S. M. Yaqub cannot eject Muhammadi Furniture Manufacturing Co. from the premises as a lessee under the lease deed Exh. 21 yet he has obtained a certi ficate from the Rent Controller to eject the Co. The learned counsel of the Co. has attacked the certificate from two angles. According to him the grounds of ejectment, as stated in it, are wrong and are based on the erroneous assumption that the Co. are a tenant of S. M. Yaqub. The Rent Controller held in an ex parte order :‑ "The applicant is the lessee of plot of land with buildings thereon holding the lease from the trustees of the estate of Mrs. Shirinbai Rustom ji Marker, who are owners of the plot and buildings in question. The lease is for a period of 30 years and one of the conditions therein is that the lessee shall demolish the existing building and structures and construct such building as he may think best entirely at his own cost. The present occupant has not paid any rent and have started making" old constructions in the said plot of land. The applicant states that he requires the plot of land for demolishing the standing structures which is in a dangerous condition and erecting a new building which will accommodate 70 families". The Muhammadi Furniture Manufacturing Co. applied for a review of the order of the ground that they were not served with a notice. The application was dismissed and the applicant went in revision from the order of dismissal. The revisional authority held "The review application was rightly dismissed and conse quently this revision application too is liable to be dismissed. Revision application against the order dated 7‑12‑1948 is obviously time‑barred, but even on facts the applicants have no case. The Lahore ruling quoted by the applicants' advocate not wholly applicable to this case as the word "satis factorily" used by proviso to S. 10 of the Lahore Act does not find place in proviso to S. 9 of the Sind Act. On other points the opponents' case does not go against the Lahore ruling (A I R 1944 Lab. 477), since the opponent wants to reconstruct the building on the same site and not on a different one. I accordingly dismiss the revision application." The counsel of the Trust and S. M. Yaqub has raised the question that the Civil Courts have no jurisdiction to go behind the certificate of ejectment granted by the Rent Controller. The answer to this question depends on whether the Rent Controller had the jurisdiction to pass the order and whether he did so strictly according to the provision of the Sind Rent Restriction Act, 1947. Section 9 of the Act states the circumstances in which eviction is prevented from an accommodation. This section is divided into two parts ; subsection (1) places those tenants in one class who may be ready and willing to pay the rent and may be observing the conditions of tenancy. It lays down that no order for the recovery of possession of any premises can be made by any Court against such tenants excepting when any one or more of the grounds stated in subsection (2) were applicable to them. Four grounds are stated in subsection (2) on which the Rent Controller can certify that a tenant is liable to be ejected. These grounds do not include non‑payment of rent and the violation of the condition of tenancy. In other words, the Courts are left free to pass decrees of ejectment against tenants for non‑payment of rent and the violation of the conditions of tenancy without any certificate from the Rent Controller. In the present case, one of the grounds on which the Rent Controller granted the certificate of ejectment is non‑payment of rent. This was not, strictly speaking within his jurisdiction. He has granted the certificate on two more grounds also : firstly, "making odd constructions" by the lessee and, secondly, the need of the lessor for demolishing dangerous structures and erecting a new building to accommodate 70 families. He has not held that making constructions on the plot of land was a violation by the lessee of the conditions of tenancy, but the need of the lessor to construct a new building does fall within subsection (2) of section 9 and on this ground alone the Rent Controller could grant a certificate for ejectment. It is, therefore, immaterial that one or two other grounds were not strictly within his jurisdiction. All the grounds mentioned in subsection (2) are however relevant only if Muhammadi Furniture Manufacturing Co. is a tenant of S. M. Yaqub. The Rent Controller has held them to be a lessee of S. M. Yaqub. If they are not a lessee of S. M. Yaqub, then according to the contention of the counsel of the company the Rent Controller's decision to the contrary is not binding on the Company. Section 9 of the Rent Restriction Act, 1947 speaks of landlord and tenant. There is nothing in the Act, in express terms at least, to entitle the Rent Controller to decide a dispute regarding the subsistence of tenancy between an alleged landlord and an alleged tenant. There is no provision in the Act under which the Rent Controller may grant a certificate of ejectment in favour of a party who is not the landlord, against a party who is not the tenant of such landlord. Section 22 of the Act bars the jurisdiction of all Courts in respect of orders passed in revision under section 20 of the Act and declares an order passed in revision to be final. Section 20 provides that the Provincial Government or any person directed in this behalf by it to do so, may, on an application made within a certain period of time of any order made by the Rent Controller under the Act, call for the relevant record for satisfying itself or himself as to the legality or propriety of the order and as to the regularity of the pro ceedings, and may pass such orders thereon as may be deemed fit. The words "any order made by the Rent Controller under this Act" are important. These words as held by the Supreme Court in Muhammad Tufail v. Abdul Ghafoor and others (P L D 1958 S C (Pak.) 201) mean "any order passed in strict conformity with the provisions of" the statute. As pointed out by their Lordships, "where this is not so the Civil Court cannot be deprived of its power of inter ference". Although the Sind Rent Restriction Act, 1947 does not expressly confer the jurisdiction on the Rent Controller to determine the question of the subsistence of tenancy for purposes of granting a certificate of ejectment under the Act and section 9 presumes the existence of tenancy, yet it is possible to argue that the Rent Controller does impliedly enjoy the jurisdiction to decide whether the Act applies to the facts of a case before him and therefore he can incidentally decide whether tenancy subsists. In some Rent Acts of India and U. K. jurisdiction is expressly given to the authorities to deal with claims or other proceedings arising out of the Rent Acts or any provisions thereof. Such a jurisdiction too is merely to decide a question of title incidentally, and does not give finality to a decision made in exercise of such authority. As pointed out by the learned author of the principles of Rent Control, "it is a well known rule of jurisprudence, now settled by a multitude of decisions, that when a Court having no jurisdiction to determine questions of title to immovable property has incidentally to decide the question of title, a decision of such a Court on the question of title is not res judicata"‑See Bapuji Raghunath and others v. Kunvarji Edulji Umrigar (15 Bom. 400), Puttangowda Mallangowda Patil v. Nilkanth Kalo Deshpande (15 B L R 773) and Puttangowda Mallangowda Patil v. Nilkanth Kalo Deshpande. (37 Bom. 675 (680)) The existence of tenancy being a prerequisite of the jurisdiction of the Rent Controller under the Sind Rent Restriction Act, 1947 his assumption of jurisdiction on the basis of his own decision that tenancy exists is open to question in a court of competent jurisdiction and the certificate of ejectment granted by him is not final and bindins on the parties in this sense. In the end I may state that my decision of the issues is as followings :‑ (1) The surrender of lease, Exh. 15, executed by RB. Shivrattan G. Mohatta is not a nullity and it took effect from 26‑12‑50 on which date it.1was confirmed by the Deputy Custodian but it is subject to the tenancy rights acquired by Muhammadi Furniture Manufacturing Co. from Sant Singh. (2) The lease in favour of S. M. Yaqub, Exh. 21, has not transferred lease rights to him. (3) Muhammadi Furniture Manufacturing Company is a lessee of the Trust on monthly basis and the rate of rent is Rs. 240 per mensem. (4) No notice of ejectment was necessary for a suit of ejectment by S. M. Yaqub against Muhammadi Furniture F Manufacturing Co. because they had denied the title of S. M.I Yaqub. (5) No certificate of ejectment from the Rent Controller was necessary for bringing the suit for ejectment on the ground of non‑payment of Rent or denial of the title of the alleged landlord, but this is not true of ground that the premises were required by the alleged landlord. The certificate which was granted by the Rent Controller, Exh. 37, and which was confirmed in Revision by Exh. 30, is however, not binding in these proceedings on Muhammadi Furniture Manufacturing Company. (6) S. M. Yaqub is not entitled to recover damages from Muhammadi Furniture Manufacturing Company. (7) Muhammadi Furniture Manufacturing Company are entitled to the following reliefs (a) They are declared to be the tenants of the Trust in terms of the decision of issue No. 3. (b) The lease granted by the Trust to S. M. Yaqub is declared to be of no effect in terms of the decision of issue No. 2. (c) Muhammadi Furniture Manufacturing Company are declared to have acquired the rights transferred to them by Sant Singh under Exh. 33. (d) The certificate or certificates of ejectment granted by the. Rent Controller are not binding on Muhammadi Furniture Manufacturing Company as decided under issue No.

5. No injunction regarding their enforcement is necessary. Suits No. 290 of 1948 and No. 264 of 1949 are dismissed with costs and Suit No. 94 of 1950 is decreed as above with costs. A. H. Order accordingly.